The law provides for the right of workers, with the exception of security force members, to form and join trade unions of their choice, conduct legal strikes, and bargain collectively. The law, however, places some restrictions on these rights. For example, legal recognition of an industrywide union requires the membership constitute a majority of the workers in an industry and restricts union leadership to citizens. The law prohibits antiunion discrimination and employer interference in union activities and requires employers to reinstate workers dismissed for organizing union activities. A strike must have the support of the majority of a company’s workforce.
The president and cabinet may suspend any strike deemed “gravely prejudicial to the country’s essential activities and public services.” The government defined “essential services” more broadly than international standards, thus denying the right to strike to a large number of public workers, such as those working in education, postal services, transport, and the production, transportation, and distribution of energy. Public employees may address grievances by means of conciliation for collective disputes and arbitration directly through the labor courts. For sectors considered essential, arbitration is compulsory if there is no agreement after 30 days of conciliation.
The law prohibits employer retaliation against workers engaged in legal strikes. If authorities do not recognize a strike as legal, employers may suspend or terminate workers for absence without leave. A factory or business owner is not obligated to negotiate a collective bargaining agreement unless at least 25 percent of workers in the factory or business are union members and request negotiations.
The government did not effectively enforce the law. Government institutions, such as the Ministry of Labor and the labor courts, did not effectively investigate, prosecute, or punish employers who violated freedom of association and collective bargaining laws or reinstate workers illegally dismissed for engaging in union activities. In addition the Public Ministry was ineffective in responding to labor court referrals for criminal prosecution in cases where employers refused to comply with labor court orders. Inspectors often lacked vehicles or fuel to carry out inspections, and in some cases they failed to take effective action to gain access to worksites in response to employers’ refusal to permit labor inspectors access to facilities, including failing to seek police assistance as required. Penalties for labor law violations range from two to 18 minimum monthly salaries ($665 to $6,000), but the penalties were inadequate and rarely enforced.
The Labor Ministry lacked the capability to impose fines or otherwise sanction employers for labor law violations discovered during inspections until June, when sanction authority was restored via the passage of law 07-2017. Until that point, the Labor Ministry had to refer the cases to the labor court. Employers frequently refused to respect court decisions favorable to workers and were rarely sanctioned for doing so. Reinstatement proceedings were frequently prolonged due to appeals and employers’ widespread use of tactics such as reincorporation as a different entity. For example, courts faced difficulties in providing notification of their orders when employers listed incorrect addresses or refused access to the court official delivering notification. The length of time to process cases for the reinstatement of workers and other labor law violations was excessive, often taking two to four years and sometimes longer.
The Special Prosecutor’s Unit for Crimes against Unionists within the Office of the Special Prosecutor for Human Rights in the Public Ministry was responsible for investigating attacks and threats against union members as well as for noncompliance with judicial orders in labor cases. Staffing for the unit increased from 12 in 2016 to 19. According to Public Ministry statistics, the unit won two convictions in cases involving violence against union members. The CICIG highlighted several factors that negatively affected investigations, including a lack of methodological planning and continuity among prosecutors, delays in conducting the criminal investigation, and witnesses’ fear of making declarations. In cases of noncompliance with labor court orders, the government reported that, of 2,312 cases referred (including a backlog from previous years), only four resulted in convictions, with the vast majority of cases still under investigation.
The Ministry of Government operated a personal protection program that included some trade unionists. The ministry reported two union members received personal security protection measures during the year, and 28 received perimeter security measures. In October 2016 the ministry revised a 2014 Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists, with input from the trade unions, but union confederations indicated the protocol had not been applied, and there was minimal progress toward ensuring the protection of threatened trade union officials and members. The unions and the ILO called for increased personal security for union leaders and members, ensuring the beneficiaries of such protection did not have to bear any costs related to their protection. Local unions and the ILO urged authorities to more effectively investigate the killings of 87 trade unionists since 2004, including consideration of antiunion motives. This included more effective application of General Instruction No. 1-2015, adopted in 2015 to improve the effectiveness of such investigations.
In 2013 the government and the unions signed a Memorandum of Understanding and developed a roadmap to implement it. An ILO special representative monitored the roadmap, which includes indicators on increased compliance with reinstatement orders, increased prosecution of perpetrators of violence against trade unionists, reforms to national legislation to conform to Convention 87, and unimpeded registration of trade unions. The instruments were developed for each indicator to avoid the establishment of an ILO Commission of Inquiry based on a complaint filed in 2012 that stated the government had not complied with ILO Convention 87 on Freedom of Association. In 2015, in part due to the lack of progress in implementing the roadmap, there was tripartite agreement between the government, unions, and employers to develop a set of key indicators to measure progress on the roadmap. During the year the government took some steps to implement the roadmap. In November the government submitted two legislative proposals related to the ILO roadmap to Congress (i.e., legislation to restore sanction authority to the Ministry of Labor and legislation to address long-standing ILO recommendations related to freedom of association and the right to strike). The Public Ministry increased the personnel for the Special Prosecutor’s Unit for Crimes against Unionists, and the Ministry of Government convened the Interagency Committee to Analyze Attacks Against Human Rights Defenders (INSTANCIA), including trade unionists on a regular basis.
Despite these efforts, the country did not demonstrate measurable progress in the effective enforcement of its labor laws, particularly those related to freedom of association and collective bargaining. The ILO noted the need for additional urgent action in several areas related to the roadmap, including investigation and prosecution of perpetrators of trade union violence; the adoption of protection measures for union officials; passage of legislative reforms to remove obstacles to freedom of association and the right to strike; and raising awareness of the rights to freedom of association and collective bargaining, particularly in the apparel and textile industries. The ILO also called for greater compliance with reinstatement orders in cases of antiunion dismissals. During its most recent session in November, based in large part on the submission of the above-referenced legislative initiatives, the ILO Governing Body deferred a decision on establishing a commission of inquiry until March 2018.
Violence and threats against trade unionists and labor activists remained serious problems, with three killings of trade unionists and two violent attacks with a firearm reported in 2016. Authorities did not thoroughly investigate most acts of violence and threats, and by often discarding trade union activity as a motive from the outset of the investigation, allowed these acts to go unprosecuted. Several labor leaders reported death threats and other acts of intimidation.
Procedural hurdles, union formation restrictions, and impunity for employers refusing to receive or ignoring court orders limited freedom of association and collective bargaining. Government statistics on attempted union registrations indicated most registrations were initially rejected, and when they were issued, it was done outside the legally established timeframes. In addition credentials of union leaders were regularly rejected and delayed. As a result union members were left without additional protections against antiunion retaliation.
Employers routinely resisted union formation attempts, delayed or only partially complied with agreements resulting from direct negotiations, and ignored judicial rulings requiring the employer to negotiate with recognized unions. There were credible reports of retaliation by employers against workers who tried to exercise their rights, including numerous complaints filed with the Ministry of Labor and the Public Ministry alleging employer retaliation for union activity. Common practices included termination and harassment of workers who attempted to form unions, creation of illegal company-supported unions to counter legally established unions, blacklisting of union organizers, and threats of factory closures. If workers joined a union or refused to disaffiliate, employers threatened not to renew their contracts or offer subcontracted workers permanent employment.
There were reports that management or its agents harassed and threatened workers who did not accept employer dismissals or refused to forfeit their right to reinstatement. According to government statistics, employers failed to comply with 62 percent of labor courts’ reinstatement orders issued in 2014-16, and in 18 percent of cases, the labor court could not carry out the reinstatement, at times due to incorrect addresses. In some cases employers did not reinstate workers to their prior positions and often failed to pay the back wages owed to them, as well as court-ordered fines. Local unions reported businesses used fraudulent bankruptcies, ownership substitution, and reincorporation of companies to circumvent legal obligations to recognize newly formed or established unions, despite legal restrictions on such practices.